Ban Lists: Can Public Housing Authorities Have Unwanted Visitors Arrested?
Gregory A. Beck | 2004 U. Ill. L. Rev. 1223
Public housing developments are overwhelmed by drug sales and incidents of gun violence that often involve nonresident visitors. In an attempt to deal with housing development crime, public housing authorities across the country have compiled so-called ban lists, which threaten named individuals with criminal trespass charges if they enter housing authority property. Ban lists have had a noticeably positive effect on the safety of many communities. At the same time, however, they often indiscriminately bar harmless individuals from visiting housing developments and conflict with the common-law tradition of allowing residents to entertain guests of their choice in their homes.
This note examines the constitutionality of ban list policies. Recognizing the tension between the beneficial and detrimental effects of ban lists, the author argues that courts should uphold them as long as they are narrowly tailored to achieving the goal of fighting crime in public housing. The author examines two possible grounds on which ban lists could be subjected to constitutional scrutiny. First, some of the broadest policies might be held to implicate the fundamental right to freedom of movement. Despite the typical association of the right to freedom of movement with a right to travel between states, current federal case law indicates courts’ willingness to recognize a right to intrastate movement. Recognition of this right could lead to decisions holding that ban lists excluding individuals from all housing developments in a city are unconstitutional.
Second, some ban lists may affect the fundamental right to freedom of association. On that basis, courts may find ban lists that frustrate traditional nuclear family relationships to be unconstitutional. There is a distinction between familial relationships, which are protected by the right to freedom of association, and nontraditional family and nonfamilial relationships, which generally are not. Ban lists cases that involved relationships falling into the latter two categories may have been decided differently if the relationships had been familial in nature.
The author proposes a number of ways for public housing authorities to ensure their ban list policies are narrowly tailored to preventing illegal activity in public housing. In general, the policies should provide basic procedural safeguards to individuals banned from properties, banning should be based on sufficient justification, offenses warranting banning should be clearly enumerated, and ban list policies should recognize an exception for invitees.